Scalia complaint's timing off

By Ben Smith

01/20/11 11:31 AM EST

Common Cause appears to be relying on a flawed timeline in it effort to vacate the Supreme Court decision on corporate spending in Citizens United on the grounds that Justices Thomas and Scalia had a conflict of interest.

The group's complaint centers on Scalia's and Thomas's speeches to a conference of conservative donors hosted by the libertarian Koch brothers, which Common Cause's Bob Edgar told POLITICO that he suspects (though without evidence) was devoted to plotting how to inject corporate money into elections.

"[I]f they attended or took part in the kind of events described in the Koch letter while the Citizens United case was pending, then they had no business voting on Citizens United," Edgar wrote in Huffington Post today.

But Eugene Meyer, the president of the conservative legal group the Federalist Society, told me today that Scalia spoke to the Palm Springs conference in January of 2007. Citizens United was only filed on December 17 of that year. Thomas spoke to the conference in January 2008, after the case had been filed in federal district court, but months before the Supreme Court took the case in August.

"The idea that he would even have heard of the suit at that stage is slim," Meyer said, adding that Scalia's 2007 speech was on the subject of foreign law and Thomas had talked about his memoir.

The Federalist Society, not the industry figures underwriting the Palm Springs gathering, paid the justices' travel expenses, he said.

I asked Common Cause President Bob Edgar if the new information changed his complaint at all, and he maintained that it doesn't, even though his original statements seemed conditioned on timing.

"It doesn’t change our argument that Scalia was there before Citizens United was filed," he said. "We think it could have laid the groundwork for a conflict of interest."

He also called the Federalist Society's role in paying travel and lodging expenses (which isn't terribly unusual) "troubling."

But the Common Cause effort has been greeted with some skepticism. Election law scholar Rick Hasen, who's sympathetic on the merits of Citizens United, told my colleague Jeanne Cummings,that the group's "approach seems both unlikely to yield the desired result of seeing the case overturned and appears to be an unwarranted attack on the ethics of the Justices.”

UPDATE: Law professor Jonathan Turley, who backs the Common Cause complaint, said that in his view the justices had shown "remarkably poor judgement in attending an event with such obvious political overtones" but that the timing also matters. "These conflicts are much more serious when these cases are pending," he said. More from Turley here.